This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 02 TEGUCIGALPA 003349
SIPDIS
STATE FOR WHA/PPC, WHA/CEN
E.O. 12958: DECL: 12/13/2012
TAGS: KJUS, PGOV, HO
SUBJECT: BATTLE OVER CONSTITUTIONAL INTERPRETATION RAGES
Classified By: PolChief Francisco Palmieri, Reasons 1.5(b) and (d).
1. (U) SUMMARY: On December 4, the Supreme Court took the
first step in analyzing constitutional amendments proposed by
Congress that would give Congress unfettered power to
interpret the constitutionality of laws they pass. The
Constitutional Chamber of the Court asked Congress to explain
why it was attempting to alter the Constitution in a manner
that ostensibly usurps traditional judicial authority. If
the amendments become effective, the judiciary will lose its
authority to construe the Constitution, and Congress will be
free to interpret the constitutionality of laws with a
two-thirds majority vote. Three weeks ago, the National
Human Rights Commission filed a lawsuit asking that the
Supreme Court declare the proposals unconstitutional and in
violation of the "separation of powers" provision in the
Constitution. The Attorney General will soon be issuing an
opinion regarding the legality of the proposed amendments.
END SUMMARY.
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JUDICIAL REVIEW OF CONGRESSIONAL PROPOSAL
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2. (U) On December 4, the Supreme Court took the first step
in analyzing a constitutional amendment proposed by the
National Congress that would give Congress unfettered power
to interpret the Constitution. The Constitutional Chamber of
the Supreme Court asked Congress to explain its motives
behind the unprecedented attempt to give itself unlimited
authority to interpret the Honduran Constitution.
3. (U) On November 13, 2002, the National Human Rights
Commission, with the support of civil society, filed a
lawsuit alleging that the Congressional move violates the
separation of powers provision of the Constitution and thus
is unconstitutional. The Court has not yet ruled on the
issue, but is expected to do so between now and when Congress
reconvenes on January 25, 2003. (Note: The Supreme Court is
scheduled to recess between December 15 and January 6. End
Note.)
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ATTORNEY GENERAL AND CIVIL SOCIETY WEIGH IN
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4. (U) The Attorney General's Office will soon issue a legal
opinion about the legality of the proposed amendments.
Attorney General Roy Medina said that his office previously
issued an opinion on this subject, and that the previous
opinion will be released at the same time as the new one.
While Attorney General opinions tend to carry great weight,
they do not amount to law and, therefore, do not have to be
followed.
5. (SBU) On December 10, 2002, the Coalition for the
Strengthening of Justice (made up of several civil society
organizations) launched a campaign to increase public
awareness and stimulate policy dialogue about the issue. The
Coalition staunchly opposes the attempts by the National
Congress to usurp judicial review and undermine the
separation of powers. Its campaign will focus on defending
the Constitution, and will include advertisements on radio,
television and in the newspapers. (Note: Civil society
helped the Human Rights Commission prepare its legal brief
for the challenge before the Supreme Court. End note.)
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ABOUT THE LAW...
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6. (SBU) There are actually two (2) constitutional
amendments at stake. The first amends section 218(9) of the
Constitution and eliminates the President's power to veto
Congressional interpretation of the Constitution. The
section 218(9) amendment was passed last year, presumably in
anticipation of more recent attempts to alter the
Constitution. The lawsuit filed by the Human Rights
Commission is primarily based on the section 218(9)
amendment. Congress is in the process of trying to pass an
amendment to section 205(10) of the Constitution--a change
that would expressly bestow upon Congress exclusive
interpretive authority. (Note: The aforementioned lawsuit
also refers to the section 205(10) issue, which is arguably
not yet ripe for official judicial review. End note.)
7. (SBU) If the amendments become final, Congress would have
unlimited power to interpret the Honduran Constitution. The
proposed constitutional amendment (205(10)) would permit
Congress to construe the Constitution with a two-thirds vote
in just one (1) regular session of Congress. Constitutional
interpretation of laws is traditionally the role of the
judiciary, and such judicial review is an integral part of
the "separation of powers" concept in a democratic system.
(Note: The Honduran Constitution contains a separation of
powers provision. End Note.) Moreover, the President would
have no veto power over this type of Congressional action
(under the amendment to section 218(9)), meaning that the
Congress could make constitutional determinations without any
"check and balances."
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COMMENT
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8. (C) The proposed amendments would thwart judicial review
of the constitutionality of Honduran laws and represent a
clear threat to the concept of separation of powers--which is
a cornerstone of a democratic system and judicial
independence. Pursuant to Honduran law, the Constitutional
Chamber of the Supreme Court is responsible for protecting
the integrity of the Constitution. Should Congress succeed
in usurping the Court's powers, the stability and
independence of the Supreme Court will be seriously
compromised as would a basic tenant of democracy.
9. (C) Conventional wisdom suggests that the Supreme Court
will likely rule that the amendments should not take effect
because they are unconstitutional and improper. It is
uncertain what position the Attorney General will take, but
more likely than not he will cite the separation of powers
requirement in the Constitution and find that the proposed
changes are unlawful. End Comment.
PIERCE